Citation Nr: 0521429
Decision Date: 08/09/05 Archive Date: 08/19/05
DOCKET NO. 04-02 441 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to an initial disability rating in excess of
50 percent for service-connected PTSD with dementia.
2. Entitlement to separate disability ratings for dementia
and post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The veteran and his wife
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Counsel
INTRODUCTION
The veteran served on active duty from December 1942 to
December 1945.
In a February 2001 decision, the RO granted service
connection and assigned an initial 30 percent evaluation for
PTSD, effective July 14, 2000. The veteran filed a notice of
disagreement (NOD) with the assigned rating in May 2001. In
July 2001, the veteran and his wife testified during a
hearing before RO personnel; a transcript of that hearing is
of record.
In an August 2002 decision, the RO granted service connection
and assigned an initial 50 percent evaluation for PTSD with
dementia, effective July 14, 2000. The RO then re-
characterized the matter on appeal as encompassing a higher,
initial disability rating for both PTSD and dementia, and
issued a statement of the case (SOC) in August 2002. The
Board of Veterans' Appeals (Board) accepts correspondence
filed by the veteran in August 2003 (within one year of the
August 2002) decision) as a timely substantive appeal on the
issue of a higher, initial disability rating for the service-
connected PTSD with dementia. See 38 C.F.R. § 20.302.
Because the veteran has disagreed with the initial rating
assigned following the grant of service connection for PTSD
with dementia, the Board has also characterized the issue on
appeal in light of the distinction noted in Fenderson v.
West, 12 Vet. App. 119, 126 (1999) (distinguishing initial
rating claims from claims for increased ratings for already
service-connected disability).
As indicated above, in the August 2002 decision that granted
service connection and assigned an initial 50 percent
evaluation for PTSD with dementia, effective July 14, 2000.
In August 2003 (within one year of that decision), the
veteran filed a NOD as to the assigned single disability
rating for both PTSD and dementia. The RO issued a SOC in
November 2003, and the veteran filed a substantive appeal in
January 2004. The RO's January 2004 supplemental SOC (SSOC)
reflects the continued denial of entitlement to separate
disability ratings for dementia and PTSD.
In July 2005, a Deputy Vice-Chairman of the Board granted the
veteran's representative's motion to advance this appeal on
the Board's docket, pursuant to 38 U.S.C.A. § 7107 (West
2002) and 38 C.F.R. § 20.900(c) (2004).
For reasons expressed below, the matters on appeal are being
remanded to the RO via the Appeals Management Center (AMC) in
Washington, DC. VA will notify the veteran when further
action, on his part, is required.
As a final preliminary matter, the Board notes that, in his
January 2004 substantive appeal, the veteran appeared to
raise the issue of service connection for anemia, cataracts,
and other residuals of radiation exposure, as well as the
issue of an earlier effective date for the grant of service
connection for dementia. As each of these issues has not
been adjudicated by the RO, they are not properly before the
Board; hence, they are referred to the RO for appropriate
action.
REMAND
The Board notes that, in November 2000, the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107 (West 2002). To implement the
provisions of the law, VA promulgated regulations published
at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2004)). The VCAA and
its implementing regulations essentially eliminate the
concept of the well-grounded claim. 38 U.S.C.A. § 5107(a);
38 C.F.R. § 3.102. They also include, upon the submission of
a substantially complete application for benefits, an
enhanced duty on the part of VA to notify a claimant of the
information and evidence needed to substantiate a claim, as
well as the duty to notify him what evidence will be obtained
by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In
addition, they define the obligation of VA with respect to
its duty to assist a claimant in obtaining evidence.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
Considering the record in light of the duties imposed by the
VCAA and its implementing regulations, the Board finds that
all notification and development action needed to fairly
adjudicate the claims on appeal has not been accomplished.
In this case, the record does not include any correspondence
from the RO specifically addressing the VCAA notice and duty
to assist provisions as they pertain to the claims currently
on appeal. to particularly include the duty, imposed by
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), requiring VA
to explain what evidence will be obtained by whom. See
Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). Action by the RO is
required to satisfy the notification provisions of the VCAA.
See Disabled American Veterans v. Secretary of Veterans
Affairs, 327 F. 3d 1339 (Fed. Cir. 2003).
The RO's notice letter to the veteran should explain that he
has a full one-year period for response. See 38 U.S.C.A.
§ 5103 (West 2002); but see also Veterans Benefits Act of
2003, Pub. L. No. 108-183, § 701, 117 Stat. 2651, ___ (Dec.
16, 2003) (to be codified at 38 U.S.C.A. § 5103(b)(3))
(amending the relevant statute to clarify that VA may make a
decision on a claim before the expiration of the one-year
VCAA notice period). The RO's letter should also invite the
veteran to submit all pertinent evidence in his possession
(of which he was not previously notified). After providing
the required notice, the RO should obtain any additional
evidence for which the veteran provides sufficient
information and, if necessary, authorization, following the
current procedures prescribed in 38 C.F.R. § 3.159.
The Board also finds that further medical development of each
of the claims is needed.
The RO should arrange for the veteran to undergo a
psychiatric examination in connection with the claims on
appeal. The record reflects that the veteran last underwent
a VA PTSD examination in October 2000; however, the issue at
that time was entitlement to service connection, and the
findings reported in connection with that examination are
inadequate for evaluating the severity of the veteran's PTSD
and dementia. Hence, contemporaneous findings that are
responsive to the General Rating Formula for evaluating
psychiatric disorders (other than eating disorders), as well
as specific medical comment as to whether it is possible to
distinguish the symptoms and manifestations of each
disability, and whether each is a capable of being separately
rated, would be helpful in resolving each claim on appeal.
See 38 U.S.C.A. § 5103A (West 2002).
The veteran is hereby advised that failure to report to the
scheduled examination, without good cause, may well result in
a denial of the claims. See 38 C.F.R. § 3.655 (2004).
Examples of good cause include, but are not limited to, the
illness or hospitalization of the claimant and death of an
immediate family member. Id. If the veteran fails to report
to the scheduled examination, the RO must obtain and
associate with the claims file a copy(ies) of any notice(s)
of the date and time of the examination sent to the veteran
by the pertinent VA medical facility.
Prior to arranging for the veteran to undergo further
examination, the RO should obtain and associate with the
claims file all outstanding VA records. The record reflects
that the veteran currently receives treatment at the VA
medical center in Erie, New York, and at the Erie Vet Center;
however, no treatment records after September 2002 are of
record. The Board emphasizes that records generated by VA
facilities that may have an impact on the adjudication of a
claim are considered constructively in the possession of VA
adjudicators during the consideration of a claim, regardless
of whether those records are physically on file. See Dunn v.
West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2
Vet. App. 611, 613 (1992). Hence, the RO should obtain and
associate with the claims file all outstanding records from
the above-referenced facilities, following the procedures set
forth in 38 C.F.R. § 3.159(c) (2004), as regards obtaining
records from Federal facilities.
The actions identified herein are consistent with the duties
to notify and assist imposed by the VCAA. However,
identification of specific actions requested on remand does
not relieve the RO of the responsibility to ensure full VCAA
compliance. Hence, in addition to the actions requested
above, the RO should undertake any other development and/or
notification action deemed warranted by the VCAA prior to
adjudicating the claims on appeal. In adjudicating both
claims, the RO should consider the additional evidence
submitted by the veteran in January 2004 (which appears to
include some non-duplicative evidence). Moreover,
adjudication of the claim for a higher initial disability
evaluation should include specific consideration of whether
"staged rating" (assignment of different ratings for
distinct periods of time, based on the facts found), pursuant
to Fenderson, is appropriate.
Accordingly, these matters are hereby REMANDED to the RO, via
the AMC, for the following actions:
1. The RO should request from the Erie
VAMC and the Erie Vet Center, all records
of the veteran's psychiatric evaluation
and/or treatment from September 2002 to
the present date, following the
procedures set forth in 38 C.F.R. § 3.159
(2004). All records and/or responses
should be associated with the claims
file.
2. The RO should furnish to the veteran
and his representative a letter providing
notification of the VCAA and the duties
to notify and assist imposed thereby,
specifically as regard the claims
currently on appeal. The letter should
include a summary of the evidence
currently of record that is pertinent to
the claims, and specific notice as to the
type of evidence necessary to
substantiate each claim.
To ensure that the duty to notify the
veteran what evidence will be obtained by
whom is met, the RO's letter should
include a request that he provide
sufficient information and, if necessary,
authorization to enable VA to obtain any
medical records pertaining to evaluation
or treatment for the claimed disabilities
that are not currently of record, and
assurance that the RO will attempt to
obtain the evidence if sufficient
information and, if necessary,
authorization is provided.
The RO's letter should also invite the
veteran to submit any pertinent evidence
in his possession, and explain the type
of evidence that is his ultimate
responsibility to submit. The RO's
letter should include clear notice that
the veteran has a full one-year period
for response (although VA may decide the
claims within the one-year period).
3. If the veteran responds, the RO
should assist him in obtaining any
additional evidence identified by
following the current procedures set
forth in 38 C.F.R. § 3.159. All
records/responses received should be
associated with the claims file. If any
records sought are not obtained, the RO
should notify the veteran of the records
that were not obtained, explain the
efforts taken to obtain them, and
describe further action to be taken.
4. After all available records and/or
responses from each contacted entity are
associated with the veteran's claims
file, , the RO should arrange for the
veteran to undergo VA examination, by a
psychiatrist, at an appropriate VA
medical facility, for evaluation of his
PTSD and dementia. The entire claims
file, to include a complete copy of this
REMAND, must be made available to the
physician designated to examine the
veteran, and the report of the
examination should include discussion of
the veteran's documented medical history
and assertions. All appropriate tests
and studies (to include psychological
testing, if warranted) should be
accomplished, and all clinical findings
should be reported in detail.
The examiner should render specific
findings with respect to the existence
and extent (or frequency, as appropriate)
of: disorientation to time or place;
ability to perform activities of daily
living; memory loss; depressed mood;
anxiety; panic attacks; sleep impairment;
impaired judgment, speech, impulse
control and/or thought processes; neglect
of personal hygiene and appearance;
suicidal ideation; and delusions and/or
hallucinations. The examiner should also
render a multi-axial diagnosis, including
assignment of a GAF scale score
representing the level of psychiatric
impairment due to the veteran's service-
connected psychiatric disability.
The examiner should specify whether the
symptoms attributable to service-
connected PTSD and those attributable to
service-connected dementia. If so, the
examiner should further opine whether the
two represent separate and distinct
disabilities capable of being separately
rated, and provide GAF scores
representing the level of impairment due
to each. If not, the examiner should
clearly so state, and provide a GAF
representing overall psychiatric
disability.
The examiner should set forth all
examination findings, along with the
complete rationale for the conclusions
reached, in a printed (typewritten)
report.
5. If the veteran fails to report to the
scheduled examination, the RO should
obtain and associate with the claims file
a copy(ies) of any notice(s) of the date
and time of the examination sent to the
veteran by the pertinent VA medical
facility.
6. To help avoid future remand, the RO
must ensure that all requested actions
have been accomplished (to the extent
possible) in compliance with this REMAND.
If any action is not undertaken, or is
taken in a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).
7. After completing the requested
actions, and any additional notification
and/or development deemed warranted, the
RO should readjudicate the claims on
appeal in light of all pertinent evidence
(to include evidence submitted by the
veteran in January 2004) and legal
authority. The RO must also document its
consideration of whether "staged
rating", pursuant to Fenderson (cited to
above), is warranted.
8. If any benefit sought on appeal
remains denied, the RO must furnish to
the veteran and his representative an
appropriate SSOC that includes citation
to and discussion of any additional legal
authority considered, as well as clear
reasons and bases for its determinations,
and afford them the appropriate time
period for response before the claims
file is returned to the Board for further
appellate consideration.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The veteran need take
no action until otherwise notified, but he may
furnish additional evidence and/or argument during the
appropriate time period. See Kutscherousky v. West, 12 Vet.
App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996);
Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski,
3 Vet. App. 129, 141 (1992).
This REMAND must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).